The making of a new Constitution

The Constitutional Expert Committee’s report, which was tabled in the Sri Lankan parliament on Friday abolishes the powerful Executive Presidency and replaces it by a Westminster style parliamentary system with a powerful Prime Minister and a ceremonial President.

As per the report which can be described as the “draft constitution”, the President will cease to be directly elected by the people and will instead be jointly elected by a bi-cameral legislature comprising a 233 member “Parliament” and a 55 member “Second Chamber”. The President will be elected by a majority of the whole membership of the two Houses.

This will make a huge difference to the moral authority of the President. Presently, the President enjoys an enormous sense of power because he is the only occupant of a high Sri Lankan office who is elected directly by the entire voting population of Sri Lanka. Others come through smaller constituencies (and also through parliament as in the case of the Prime Minister).

Thus, a directly elected President can legitimately claim that he is the quintessential repository of Sri Lanka’s sovereignty. An indirectly elected President can make no such claims.

Under the new draft constitution, the President loses his power to choose the Prime Minister and his Council of Ministers. He has to appoint as Prime Minister, not anyone who he imagines may have majority support in parliament, but one who indubitably enjoys it. The President will have to appoint ministers only on the Prime Minister’s advice. He will lose the power to allocate departments to ministries without the Prime Minister’s assent.

Unlike now, the President will not be Head of Government, take Ministerial portfolios, and chair the cabinet. He will only be Head of State and the Commander-in-Chief of the armed forces. But every action of his as C-in-C, will be subject to the advice of the PM.

The President will lose the right to dissolve parliament on his own volition. Parliament can be dissolved before its five year term only when the House itself passes a resolution seeking dissolution with a two-third majority of its entire membership.

The Prime Minister and his Council of Ministers cannot be dismissed at will. The PM and cabinet will go only when they lose the confidence of the House in a Vote of No Confidence or when the annual budget gets defeated in the third attempt in the first two years, and in two attempts after two years.

The President will cease to have discretion over the grant of pardon. This function will be exercised by the Prime Minister and a judicial committee and the President will only be rubber-stamping the decisions.

The President can be removed for mental and physical disability by a committee comprising the Speaker, the Prime Minister and the Leader of Opposition. He can be removed also by a parliamentary resolution backed by a two-thirds majority in both the Houses.

After the election, the President is expected to sever all links with any political party and function in a non-partisan manner. This is a major departure from the present constitution under which the President can be chairman of his party.

To meet the demand for provincial autonomy, the new constitution vests power over State Land in both the central and the provincial governments with the condition that land use is carried out as per the rules of the National Land Commission. But the commission’s policies should be shaped in consultation with all provincial councils.

The provinces will also have their own police forces headed by officers of the rank of Deputy Inspector General. There will be separate National and Provincial Police Commissions to make appointments, transfers and promotions at the national and at the provincial levels.

The new constitution introduces a Second Chamber to the national legislature. The lower and larger chamber called “parliament” will have 233 members elected for a five-year term. Out of these, 140 will be elected from single-member constituencies and the rest will be elected on a provincial basis.

There will be a Second Chamber of 55 members, for which members will be elected by parliament and the provincial councils. The Second Chamber will be there not to block bills passed by parliament, but to have a second look and give suggestions for improvement. In drafting bills, parliament will be expected to give due consideration to the view expressed by the Second Chamber.

The draft constitution has described Sri Lanka as “Ekiya Rajya” in Sinhala and “Orumittha Nadu” in Tamil which mean a “United Country”. The experts had avoided labeling the constitution as either “unitary” or “federal” given the strong feelings for and against these two concepts.

It has retained the “foremost place” given to Buddhism in the country while guaranteeing freedom to practice other religions. In a departure from other constitutions, it guarantees individual and family privacy and has stated that gender and sexual orientations will not be a bar to public employment.

Prime Minister Wickremesinghe told parliament while tabling the draft constitution, that what has been made available is only a draft. Members have also been given summaries of all the views expressed in the six sub-committees, he pointed out. He appealed to the members to study the drafts and the views expressed and come to a consensus on each and every aspect of the constitution.

The constitution has a long way to go. It has to be passed by parliament with a two-thirds majority and also put through a referendum.

But opposition to it has already become manifest and loud, with the opposition Sri Lanka Podujana Peramuna (SLPP) headed by former President Mahinda Rajapaksa openly saying that it is meant to divide Sri Lanka into “nine semi-independent units.” He wanted the draft to be taken up for debate in the forthcoming Presidential and parliamentary elections to know the peoples’ view. Rajapaksa also wanted to know why the ruling United National Party (UNP) is keeping its view a secret.

It is no secret that Rajapaksa is a votary of the Executive Presidency as he believes that it was only because Sri Lanka had an Executive Presidency that his government was able to defeat the Liberation Tigers of Tamil Eelam (LTTE) in 2009 begin massive infrastructural development in 2010.

Although President Sirisana has not spoken on the issue, his Sri Lanka Freedom Party (SLFP) is against the abolition of the Executive Presidency and any further devolution of power to the provinces especially to the Tamil-speaking Northern and Eastern Provinces. The draft constitution has been put forward at a time when Sirisena is attempting to fully exploit his position as Executive President to curb the power and influence of Prime Minister Wickremesinghe.

Only the Tamil National Alliance and the other Tamil parties are for devolution and have been clamoring for it. The others had kept promising to amend the constitution to get the votes of Tamils and liberals, but never fulfilled the promise. This has been the case since the 1980s and is likely to be so for the foreseeable future.

Power hungry politicians like a system based on the concentration of power and not diffusion of power. And no Sri Lankan political party depending on the majority Sinhala vote really wants to share power with the minorities on a territorial basis because it sees the seeds of separatism in such a distribution of power.

It is generally agreed that with provincial, Presidential and parliamentary elections due in 2019-2020, no Sinhala-majority political party will want to be associated with the just presented draft constitution. The government of Ranil Wickremesinghe will, in all likelihood, make a pretense of discussing a new constitution and abandon the effort as the first available opportunity.